An Exasperated Judge is not Necessarily a Biased Judge

June 10, 2019 § Leave a comment

Sandra Oliver was a party in chancery court hearings involving probate of her grandmother’s estate and partition of her real property. The chancellor’s ruling on the merits were not to her liking, and she appealed pro se.

One of the issues she raised on appeal was that the chancellor should have recused herself because she was biased against her and her father. In Estate of Oliver: Oliver v. Oliver and Carney, decided April 16, 2019, the COA affirmed. The portion of Judge Carlton’s opinion addressing the issue is longer than I usually quote, but I think you will find it helpful:

¶103. Sandra asserts that her and her father’s due process rights were violated at hearings before Chancellor Daniels that took place in both the partition and estate matters due to the chancellor’s alleged bias against her. We find Sandra’s contentions without merit. ¶104. The supreme court has recognized that “[t]his Court presumes that a judge, sworn to administer impartial justice, is qualified and unbiased. For a party to overcome the presumption, the party must produce evidence of a reasonable doubt about the validity of the presumption.” Kinney v. S. Miss. Planning & Dev. Dist. Inc., 202 So. 3d 187, 194 (¶20) (Miss. 2016) (internal quotation marks and citations omitted). Continuing, the supreme court explained that “[r]easonable doubt may be found when there is a question of whether a reasonable person, knowing all of the circumstances, would harbor doubts about the judge’s impartiality. Said another way, the presumption is overcome only by showing beyond a reasonable doubt that the judge was biased or unqualified.” Id.; see Washington Mut. Fin. Grp. LLC v. Blackmon, 925 So. 2d 780, 785 (¶12) (Miss. 2004) (recognizing the “heavy burden” a movant bears in proving that a judge’s purported hostility requires recusal).

¶105. Sandra contends that the chancellor displayed “biased actions” in the partition action at the February 2, 2015 hearing on Sandra’s motion to controvert, the Carneys’ motion in limine to exclude testimony or evidence relating to any claim that Sandra may have due to the actions of J.C., and issues relevant to that motion raised in Sandra’s pro se motion to correct facts. Sandra was represented by counsel at that hearing. In her brief, Sandra refers to this hearing as a “non-hearing,” and contends that the chancellor showed bias because she did not allow presentation of evidence or testimony. We disagree.

¶106. At the beginning of the hearing, the chancellor observed that Sandra had “explain[ed] her whole case” in her pro se motion to correct facts. The chancellor then stated on the record that she had “read the entire [court] file and not just the motions that are noticed for hearing today . . . [and that she] under[stood] very thoroughly what the issues [were and] the issues that [Sandra tried] to raise . . . .” The chancellor then heard argument of counsel at length, and discussed numerous points of law with counsel. In our review of the hearing transcript, we find no indication that the chancellor displayed bias in any way at the February 2, 2015 hearing.

¶107. Regarding subsequent hearings before Chancellor Daniels, Sandra states in her brief that after the February 2, 2015 “non-hearing,” she “filed a formal complaint with the judicial committee against Judge Daniels based on all of the biased actions, reactions, denial of a hearing and presenting of any testimony as well as remarks made at the February 2nd, 2015 hearing.” Sandra’s judicial performance complaint against Chancellor Daniels was filed in June 2016, at least three months before the September 27, 2016 final partition hearing before Chancellor Daniels, and five months before the November 14, 2016 hearing in the estate action, also before Chancellor Daniels. On appeal, Sandra claims that her filing of the judicial performance complaint against Chancellor Daniels in June 2016 is a basis for requiring Chancellor Daniels’s recusal at these subsequent hearings.

¶108. As to this argument, we observe that Sandra did not object or file a motion in either the partition or estate action asking Chancellor Daniels to recuse. Sandra’s argument about Chancellor Daniels’s alleged bias was not raised until her appeal, which procedurally bars her from arguing the issue in this case. Tubwell v. Grant, 760 So. 2d 687, 689 (¶8) (Miss. 2000). As the supreme court recognized in Tubwell:

Over the years, this Court has been quick to point out that it will not allow a party to take his chances with a judge about whom he knows of [alleged] grounds for recusal and then, after he loses, file his motion. Where the party knew of the grounds for the motion or with the exercise of reasonable diligence may have discovered those grounds, and where that party does not move timely prior to trial, the point will be deemed waived. Id.

As a result of her untimely objection, Sandra has waived this issue. See also Latham v. Latham, 261 So. 3d 1110, 1113 (¶¶9-11) (Miss. 2019) (holding that appellant waived recusal argument on appeal where he knew the ground for June 2016. In Adams, 249 So. 3d at 467-68 (¶¶15-21), Elle Adams made the same argument, asserting that the chancellor in that case should have recused herself because Elle had filed a state bar complaint and federal action against the chancellor. We rejected Elle’s argument,
finding that the chancellor’s awareness of the federal action against her, and the pending state bar complaint, did not require recusal where there was “no evidence that the chancellor’s impartiality might be reasonably questioned.” Id. at 468 (¶21). We find that the same analysis applies in this case.

¶111. Sandra quotes from the September 27, 2016 final partition hearing as an example of the chancellor’s “grudge” against her. But in this excerpt the chancellor, at most, is expressing frustration with the parties’ inability to reach an agreement on any detail, including what half of the property they wanted (“I was hoping y’all could at least agree on one thing, but obviously y’all cannot agree on whether the sun is shining outside or not.”). Our review of the transcript from the September 27, 2016 hearing shows no bias warranting recusal.

¶112. Similarly, Sandra quotes snippets of exchanges from the November 14, 2016 hearing in the estate case that she claims demonstrates the chancellor’s alleged animosity towards her. These include exchanges such as the chancellor telling Sandra that “[i]f you have a problem with my ruling, appeal it[;]” and the chancellor’s admonishment to Sandra to “be careful[,]” stated in the context of Sandra representing herself. These statements, particularly when read in context, are nowhere near the “combative, antagonistic, discourteous, and adversarial” conduct that would lead a reasonable person to conclude that Sandra did not receive a fair hearing. Cf. Schmidt v. Bermudez, 5 So. 3d 1064, 1074 (¶¶19-21) (Miss. 2009) (finding that a chancellor’s “abusive and inappropriate conduct,” including, but not limited to, repeatedly questioning a party’s honesty, badgering that party during cross-examination regarding evidence to be presented in her own case, and accusing the party of “diarrhea of
the mouth” violated party’s substantive right to a fair trial). Sandra also quotes an exchange in which the chancellor refused to let Sandra testify about ad valorem tax issues—but, as the chancellor explained in the next line of the transcript (not included in Sandra’s snippet), this was because Sandra was trying to raise issues already ruled upon at the final partition hearing. Nothing in that exchange suggests a lack of impartiality in any way.

¶113. In short, our review of the September 27, 2016 and November 14, 2016 hearing transcripts does not reveal any exchange between Sandra and the chancellor that suggests any hostility, lack of impartiality, or ill will on the chancellor’s part so as to result in a “manifest miscarriage of justice” in this case. We reject this assignment of error.

Some comments tomorrow.

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